Family Law Section Blog: The Most Important Word in 'Child Support' is 'Child':

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  • Family Law Section Blog
    April
    04
    2018

    The Most Important Word in 'Child Support' is 'Child'

    Comm. Mark R. Fremgen

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    There is validity in the moral principle that as a society we have a responsibility to ensure the protection of our most vulnerable members of the society, writes Mark Fremgen.

    “Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime.”

    “If you feed wild animals, they keep coming back” (recent comment in a child support hearing before a Wisconsin family court commissioner).

    In general, the old proverb above certainly provides a wise lesson. Unfortunately there are those who like to quote that proverb or the more inartful comment above from the child support hearing to define those parents entitled by law to receive support for their children, as meager as the support may be.

    Mark Fremgen gov Mark.Fremgen wicourts Mark Fremgen, John Marshall 1990, is a Dane County Circuit Court commissioner, where he specializes in family court and small claims cases.

    It is impossible to argue against the notion that there are those in society who are less-in-need, yet feel entitled to public and private handouts – including corporate America.

    There may be some validity to the need to invest in business in order to generate new business and to grow an economy. There is equal validity in the moral principle that as a society we have a responsibility to ensure the protection of the most vulnerable members of our society.

    For the most part, that notion is an essential basis of our justice system.

    On Child Support

    However one falls in the political or economic landscape, these adages and proverbs offer very little guidance in the family law system regarding support – in particular, child support.

    One of the primary responsibilities of a court in addressing a family action involving children is to ensure that both parents provide financial support for the child.1 The appellate courts suggest that the statutory guidelines are to be considered and that the guidelines are deemed to be per se fair.2

    However, the trial courts are not robots and should not simply establish support based on some mechanical application of the statutory guidelines. There is a human factor that must be considered.

    Courts Are Not Robots

    Although the statute references various factors to consider in deviating from the standard guideline support amount3, the principle focus should be on the needs of the child and the ability of the obligor to pay support.4

    In this regard, what is often overlooked by the payer and attorneys alike is that, in considering the needs of the child, the court is directed to consider the amount of support that is appropriate to maintain the child’s pre-divorce or pre-separation lifestyle.5

    This concept that courts are to recognize, or at least formulate some level of cognizance when entering a support order or approving a stipulated support agreement, is often lost on the parties. Often, the parties are focused on how the support will affect themselves.

    A Tenuous Balancing Act

    The courts are not robots, designed to simply impute the numbers and return with a dollar figure, ignoring the other collateral issues (such as ability to meet ordinary costs of living). That is why there is a statute that allows courts to consider deviations from guidelines based on a number of factors, including financial resources of the parties.

    However, these legitimate concerns are often lost to those who protest about the support, not as to their individual ability to pay support and typical costs of living, but a generalized dispute with a custodial parent receiving support.

    Courts struggle with the tenuous balancing act between following the statutorily mandated guidelines and a payer’s ability to pay. I think it is important to fully recognize the financial resources of each home, the reasonable living expenses in each household, and the unique needs of the child. I am inclined to have sympathy with the payer who is barely able to survive with a guideline support order; I have no sympathy for the payer who bemoans an inability to maintain a lavish lifestyle or to purchase toys in light of his or her financial obligation to support the child.

    Understanding the Realities of Raising a Child

    As I hear child support cases on a weekly basis, and the tired refrain, at times, of the displeased payer bemoaning the support amount, or why the other parent does not need the support, I recall a case I heard several years ago.

    The mother had brought an action for modification of support because it had been more than three years since the last support order had been entered. The child was now in high school.

    The father brought his paystubs, and we determined the guideline amount for support. I asked each parent, as I always do before entering the order, whether either parent was requesting a deviation from the guidelines either higher or lower.

    The mother said that she was satisfied with the guidelines and was not requesting a deviation. The father said he would like me to consider a deviation … upward.

    Surprised, I asked, “You mean you want a deviation downward, correct?”

    “No,” he answered. “Our son is now in high school, and there are a lot more things he will want to do. Plus, he is getting bigger and will need more clothes, probably eats much more than he did, and I want to make sure that he has enough. So, I would like to pay an additional $100 a week.”

    A little surprised, I looked to the mother and asked whether she objected to getting more financial support and, of course, she said “No.”

    This parent did not request or require more time with his son, and did not request some proof of where the money was going to be spent. He simply understood the realities of raising a teenager, and wanted to make sure that neither he nor the mother would be unable to support the child’s needs.

    It Is All About the Children

    Some of the parents we see in court, unfortunately, need to be forced to step up and accept their moral and legal obligation to financially support a child that they chose to bring into this world.

    Many others, who at times we are fortunate to witness, embrace this responsibility beyond what the law requires.

    I, for one, am proud of my role in both situations because, after all, it is all about the children.

    Endnotes

    1 Wis. Stat. § 767.511 (1)(a).

    2 Abitz v. Abitz, 155 Wis. 2d 161, 179 (1990).

    3 Wis. Stat. § 767.511 (1m).

    4 Edwards v. Edwards, 97 Wis. 2d 111 (1980).

    5 Nelson v. Candee, 205 Wis. 2d. 632, 642 (CA 1996).





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